Problems with Getting a Fair Result from the Field Sobriety Test

Jerald Novak: Think about it, one of the tests they give you is called the Walk-A-Straight-Line Test where you’re supposed to keep your arms at your side, take nine steps, heel to toe. On the ninth step, you’re supposed to put one foot on the line, and the other foot off the line, and take four small pivoting steps into a 180 degrees circle. Then, you’re supposed to return down that imaginary line, taking nine steps, heel to toe. Then, when you’re done, stop exactly at the ninth step and turn around.

Now, it doesn’t sound like a very difficult test. It doesn’t sound like a difficult test because most people isolate that test and take it out of context. For example, if I sent you in the middle of the day, at 2:00 in the afternoon on a sunny warm 75-degree day, let’s go out in the parking lot, and I’d like you to put your arms to your side and take nine steps heel to toe with your arms at your side. Take one foot on the line. As you turn, take four small pivoting steps with your other foot. Then, I want you to return down that line nine steps heel to toe with your arms at your side.

It doesn’t sound like it’s a big deal because we’ve isolated the test. When you put the test in context, it’s a completely different experience. Let’s remember that this is at 1:00, 2:00, 3:00 in the morning. Let’s remember that it’s dark outside. Let’s remember that you’ve been up all day. Let’s remember that you’ve worked all day, and you may be tired. Let’s remember that you’re on the side of the road with not so good lighting. Let’s remember that all roads are built with a slight several degree incline or decline because they’re designed to let water roll off so that water doesn’t accumulate on the roadway.

Now, let’s add in to the fact that there’s traffic going by. Let’s add in to the fact that the police officer will only explain these tests once. Let’s add in to the fact that the officer will not even completely demonstrate the test. What he’ll do is put his arms at the side and take one, two, or three steps, and ask you if you understand. He won’t demonstrate the full test. Then, let’s also keep in mind that we’ve got some high intensity flashing lights going on and off. Let’s also add in the fact that if we’ve been pulled over and we must exit our vehicle, our heart rate is up, our respiration is up, our perspiration is up. We’re fearful. Even if we haven’t done anything, we’re fearful.

Now, the police officer explains this test one time, and we have one shot to make it or break it. I don’t know about you but I don’t know anybody who has done something one time with no practice, with no study, with no critique, with no opportunity to understand the test and do well. I just don’t know anybody who has done that on any level at anything in their life. Why should this be different?

The police officer, remember, when he’s trained to administer this test, he goes into the Police Training Academy and spends about 40 hours learning how to administer these tests. 40 hours, and in what situation does he learn this test or she learned this test? Here, she is a student. They’re in a well-lit, climate-controlled room with no wind, not in the middle of the night, not on the side of the road, no traffic going by.

They get a giant book that explains the test. They get to watch these videos to how the tests are supposed to be administered and performed. They get to practice the test. They get critiqued on their administration of the test and critiqued on their performance because they do a student-instructor team. Then, one person acts as the instructor, one person acts as the student, and vice versa. They turn around. They’re critiqued and told what they’ve done right, what they’ve done wrong, and then they get to do it many, many, many more times before they’re ever judged on their ability to take the test.

If you’re the motorist, you get a 15 or 20-second explanation if you’re lucky, and you get one shot. Don’t tell me it’s about determining whether somebody’s under the influence or not. It’s all about trying to get someone to do something they’re unfamiliar with, have had no practice with, have had no real good demonstration, have had no critiquing and no opportunity to practice. It’s all about getting you to do something and pretending that’s a fair test so that they can arrest you for DUI.

Participation in the Field Sobriety Test

Interviewer: At what point is the test administered? At what point does a police officer provide this test as an option for the driver?

Jerald Novak: They always make it sound like it’s not an option. They always make it sound like you have to participate in standardized field sobriety tests. They give you this explanation. First of all, they stop you for some type of traffic violation, real or perceived. Once they get up to your window, the first question is, “Have you had anything to drink tonight?” Most people would be honest and they say, “Yeah, I had a glass of wine with dinner” or “I had a beer at dinner” or something like that.

The minute you admit that, they now have reasonable grounds to get you out of the car. They say to you, “I want you to get out of the car and take a few tests. I want to make sure you’re safe to drive home.” It has nothing to do with being safe to drive home, and everything to do with, let’s see if I can accumulate some evidence, real or perceived, so that I can arrest you for DUI. Everything you do, and I’m talking about everything you do, will be judged by the police officer. Once you’re out of the car, they’ll say, “I want you to do this test,” and most people don’t realize that they have the opportunity to have the option to say, “I’m sorry, sir, I don’t wish to participate in any test.”

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